Fourth Department – Gardner v. Korthals

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Appellate Division, Fourth Department

Custody

Change in Schools – Change in Schedules

Gardner v. Korthals

CA 14-01627

Appealed from Supreme Court, Erie County

Background: The defendant father moved to change the school in which the subject child is enrolled because the father’s home is now the child’s primary residence pursuant to a stipulated order. He also sought to change the access schedule. The mother appealed.

Ruling: The Appellate Division reversed in part. The court held that a hearing should have been conducted to consider any additional extrinsic evidence on the issue whether the parties intended a change to the child’s school enrollment to be contemporaneous with his change in primary residence. However, the Appellate Division found no error in changing the access schedule as the then 16-year old child testified that the current access schedule had an adverse effect on the time he spends with his brother.

Andrew F. Emorsky of Bennett Schechter Arcuri & Will for the plaintiff-appellant; Mindy L. Marranca, attorney for the child